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Stewart Baker; Charles Dunlap, Jr.; Gregor... Education. (2012) 'Patriots Debate.' New.

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TOPIC FREQUENCY

Us 8, Afghanistan 6, Guantanamo 3, Stephen 3, United States 3, U.s. 3, Thailand 3, Stewart 2, Stanley Baldwin 2, Panetta 2, Berlin 2, Washington 2, London 2, Geneva 2, Kittyhawk 1, Harvey Rishikof 1, Bernie Horowitz 1, Taliban 1, National Security Agency 1, Sony 1,
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  CSPAN    Book TV    Stewart Baker; Charles Dunlap, Jr.;  
   Gregor...  Education.  (2012) 'Patriots Debate.' New.  

    December 16, 2012
    1:00 - 3:00am EST  

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>> cahal books are also available at the back of the room. the authors will be more than happy to sign them if you can catch them.
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the aba journal featured one of our debates that culminated in the release of the book but we would like to think the people at the "journal" for featuring what we think our critical things and rehab one senior member working in the back but our committee. we are pleased to say we haq had positive responses to the former counter national intelligence executive executive, called the book one of the best affiliations
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of the key issues and is stands out with the bipartisan dialogue and readability. must read for policy makers and media and the general public. how the book came out it would be bernie horowitz the could briefly explained the process of what it took to write the book. >> , like to thank the committee on national security giving me the opportunity to work on this project. if you told me when i was in college and work on a national security policy book by would tell you that you are crazy. i often hear a panelist describe only now to recede national security law and
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ribisi law reviews and journals pop-up and a 72 represents said against generation of the 9/11 attacks i was always interested of politics and government but never got to steady national-security and high-school recall is so i wrote my thesis on the patriot act so i encountered the predecessor of the book. what distinguished its this it was a wonderful structure to focus on policy rather than personality. many other books at the time regurgitated but not had new policy.
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but the wall between law enforcement and i mentioned it surged ignoble purpose. so is says i am thinking about the new edition and he explained he wanted to retain the same structure and he wanted to bring back what he could because he had become more accomplished at the time he had not given it that much thought but revisited the patriot act but i thought if he had the rubric to the purpose of the 10 most pressing national security topics on the docket. here we are a year later and
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we feel we have accomplished ergo to provide substantive analysis. we feel the book appeals to a wider demographic and then national security policy wall crowd. thank you to the authors for contributing their essays and also to talk to contemporaneously. the structure conducts on a relatively formal basis in the second hour is this q&a and now i will turn things over to my friend and
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co-editor harvey rishikof. >> he living example of as an undergraduate they will produce documents that could be used for teaching purposes the who one day will end up as an attorney in moscow. the first part of the book deals with the war on terror is some and home-grown terrorism in the interrogation issue sid believe move to the area of the big %is some and home-grown terrorism in the interrogation issue sid believe move to the area of the big issue of technology and privacy then third-party aberration issues national
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security letter issues between my goal richard send then the head the einstein 34 edo the rethought would be interested ain't to have the technology going forward. and what is next but starting with the framework to projecting force with two of those debates this afternoon and then you talk about targeted killing. we will do cyber war and policies.
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both individuals are quite well known to me but perhaps not in the audience. serving in several high-profile positions of the government department of justice and labor. most recently he was the solicitor of labor, third ranking official in this position and oversaw more than 600 employees and broad the man is a litigation under the unemployment loss and has served as senior advisor to the secretary of labor into the department of justice of the gold council. in georgia view bush helped to formulate position on
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justice, a tort reform and other issues so comes to this debate with a great deal of knowledge. on my left is professor stephen vladeck at american university washington college of law. we agree the nationalized expert also part of the military tribunal and has many amicus briefs to the high court and has written on a broad range of issues and our own committee on un national-security. senior editor the peer
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review on policy and a senior contributor to one of the first things we look in the morning after the times. >> after the times? >> after and he clerked for the honorable judge of the night of the circuit and also the u.s. court of appeals. and was editor at the yet yale law journal. to both very talented the debate is entitled potential policy. we set it up to do it live stephen most art and then we
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will have the response. >> it is of pleasures to be here and four you guys to put this to gather to having a the fortitude to have the purchase of a. i am a firm believer the best we can do is raise the level of debate to engage with each other or talk past each other. those remarks that virtually consistent with the book one question they could ask with the war on terror is some, the government's ability to detail without trial it seems the one that dominates the future policy
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will and should be subject to judicial review. if you're a non citizen picked up thursday will be subject to judicial review because we had cases where the courts rejected arguments offered by the bush administrations settle because these individuals have rights and also a moot point* because united states had not picked up anybody fitting the categories objecting them to detention since 2003. there have '08-- to make in three cases. although last to win custody there has been no new detentions and it will probably be that way for
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awhile. also with guantanamo we are familiar with the decision the court held it had fully fact that guantanamo. there shall be judicial review going forward for the 160 detainees held in guantanamo. but now these are the legacy cases nobody has been sent sense 2006 but there's a reason why this administrations are in the successor will add to the population. this matters elsewhere will future policy be subject to judicial review? if not really talk about policy and not a lot.
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shortly after the decision the case held the suspension caused does run in the cases where the individual is not a citizen of afghanistan and not arrested in afghanistan are picked up on the battlefield so the view was there should be judicial review. trantwenty 10 the circuit reversed the court appeal held that is a mike the suspension clause should not run to detention even the context of individuals either from a or pick up afghanistan.
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because they could not show favorable for the sole purpose of judicial review and unless they could they should cut three other way. so that was resolved just this morning the judge's very obliging had another ruling that even with a new evidence submitted it still was not enough. if affirmed on appeal there will not be judiciary view of been a detention of non-citizens picked up outside of the u.s.. that would change the dynamic silent to suggest
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there are three mess. if you do not already know already i want to talk about the mess and number one, behind the reasoning was an important distinction that the united states only exercises of farm of joint control that we were involved in the government of afghanistan. that does not appear to be true that shows and even karzai himself they said we don't want to moody attain these people this is entirely your problem united
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states. so karzai on this point* made a harder for the above bid ministrations and to wind down if they initially predicted. joint control is number one. it looks all lot like guantanamo. it is not a myth to say there are booked -- bullets flying. of course. with the d.c. circuit said is preposterous to think the government would intentionally endanger the detainee's by holding them somewhere subjected to violence with active combat operations but the dtv is in
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question were not picked up by the military or on a battlefield to work captured in europe one was a north africa and they were transported into harm's way of the danger is of the government. instead of hardest claim the you hear is the real reason judicial review does not make sense it poses a threat to to military operation they will actively interfere and the court should not do that. is the interference was there it would be a serious problem but we have four years of jurisprudence with guantanamo detainee is where they made this same argument
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to interfere with the government to conduct the war on terror is some and there has been no suggestion that has happened d.c. jurisprudence is pro-government of protection of information into my knowledge not one allegation in a sensitive deprivation has gotten out to and the habeas case since the that's huge show court has impacted operations anywhere in the world if it is mythical the end it all the furthers the cause and make up the wrong way and will stop there.
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>> perfect. >> i want to start off by thinking them to put the issue together it is worthy of the debate and this is a great format to. to take a step back to talk about a broader point* the underlyinunderlyin g notion the d.c. circuit undermines the supreme court decision and is actively in the process of closing get to. the decision never would have made where they said saying so what supreme court for dumping the burden on us.
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you said the ready and security it is easy to balance now go fourth and do it. we wilshire -- we're sure you can work out. one of the biggest surprise is to be is how closely the obama administration has kept the account your chair is some policy that you come in to assume office now realize the responsibility to keep the american people live and save design your shoulders. it is easy to armchair quarterback previous decisions and now you realize you are responsible thank you for making us responsible to figure out
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what the judge said if anybody thinks there is a reasonable chance of an al qaeda associate will try to kill citizens and some have we will not vote to spring them. and whether the d.c. circuit undermines the supreme court has not showed any inclination and justice kennedy seems to be happy either want to get into the nasty details but let dead d.c. circuit work out. ic gas has done a pretty good job the waves with the
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evidentiary basis to accommodate the unique needs of the military to say like unlike normal evidence here say is submitted because of it was initially given and we pulled those soldiers back? louise say they will produce all of the witnesses that spoke to intelligence officers and five back to testify? says stephen it is right with you a context with sony one handful of detainee's left gain in a war of choice
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behalf to fight back in some capacity but there howled preventive late to ensure they don't have opportunity to kill soldiers. when you take the reasonableness of the d.c. circuit with this small population no question wonder if we can handle habeas cases nobody else is put in their the we could handle the versions that are there. what happens when you take that to export to another context? it is a challenge i am not
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entirely certain with what they should do about afghanistan. maybe he can address the in his rebuttal and how it works but as a matter of constitutional right somebody captured on the field of battle and there is a dispute one was captured in pakistan those who were captured maybe he wants to kraft the rule that would be a gauge of the world war we had 1 million pow and our charge a got continuing
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members on both fronts. so if as a matter of constitutional right somebody captured that they are entitled to habeas review? how do you know, that of 1 million people to review? the geneva convention provide for protections those people thought of details. nobody has actually plotted these provisions they can have the ipx station to buy cigarettes. nobody thought the powers would be required to provide judicial review rights. this is a very new innovation.
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so the d.c. circuit got it right. the first of the joint the tension that we seek is relevant whether or not and good decision from world war to five years after world war ii was over petition a to be sprung from the prison in germany where he was held i don't think we rejoin the detaining so i do think the bullets flying are important. and i think the burden is on stephen to explain it as a matter of principle i you handle the huge volume. with respect to a different
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circumstance to expand that to 200 of thousands of detainees then the bullets and the d.c. circuit went to the president it was decided five years after words to 10 looking back they said there was dangers for german partisans at that time and that was a real consideration so it is hard and for the d.c. circuit to say the dangers that the blogger of your poor's bays are less than germany five years after world war ii. >> part of the issue is if we gave you all power with is the regime you like to
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see constructed? and congress has played a role and also military commissions what is your role congress might have the? what would you do? >> the analogy to world war two's powerful and ultimately misleading. by all accounts we've told a couple thousand a big difference between at and 1 million. they were very happy in the camp in alabama. you cannot find an example because they did not want to go anywhere.
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not one case the judge dismissed the challenge with the military commission of a a2 detain people that would mitigate the need for judicial review if we've got followed article five until we can show it is true it would not need judicial review my concern is not individuals pick up on the battlefield there should be a presumption that the problem is to say anyone the government picks up anywhere as an enemy combat to
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assumes the question everybody is a terrorism suspect is who they say they are? >> but why not use the geneva convention? said of then more due process is required? >> i don't they kiddies see circuit could disagree with these folks where captured near the area detained there is no showing there was a bad faith we could take them
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up anywhere in the world. i don't take the d.c. circuit would agree they would say there are two steps does it look at the status? nine u.s. citizens moves on to the next question so what type of control to be exercised? one picked up within the border there is not as much of unquestioned in the way that we've arguably do and the supreme court made a good point* was a shell game we don't have full sovereignty even with full
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control. even to capture a lawful, and the. >> about the congressional regime? is there more room for congress to take position? >> it would be potentially useful to have congress provide a clear standard the way the habeas proceeding should be conducted but at this point* there has been a rules adopted in this congress disagrees they don't and religious issue will be passed i doubt there will be a role for intervention in the future
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since. >> is seems that congress won't especially if he is right did judicial review will not extend just to be clear i don't think thailand is that close to afghanistan but congress could play a clear role where there is not constitutionally required to distribute there is a concern congress could try to say if individuals are picked up outside of the united states here are minimal statutory procedures the being the battlefield issues another day backlash
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s we wind down that number decreases when we pick up the pirates in the gulf of aden or thailand can redeploy judicial review really? there's a bigger role for congress to play. >> now we will have this next panel come up. what is the fate to of prisoners is the afghans to not want to house the people? >> i don't think there is a due process. >> i dunno enough when
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somebody is captured in thailand i dunno where the prison was they would rather be detained. >> we will transition now. its and then you will come back. i also want to assize if you like to participate please come to the website american bar.org/national security. also with the 22nd annual
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review the conference in washington d.c. registration could be found on the website now we move to the second debate called the cyber more. the officer with security challenges that was the first assistant secretary from the department of romance security with electronic surveillance and related technology issues. at the national security
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agency with the effort to reform encryption and i first met stewart he was a beacon of light on so many issues. [laughter] another participant that we know adds charlie and starting in end 2010 with the rank of major general he assisted in 356 million lawyers and 500 civilians around the world seesaw of rate of military justice.
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>> as part of the law review i have known him a number of years. >> harvey asks that our remarks are shorter than debt-reduction. [laughter] that concept of cyber war as we have begun to seek how that would play out from the cyber intrusions almost every institution and we realize it is a short hop from compromising those networks to the control system that runs by our system, arab refinery
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refinery, pipeline it becomes clear with the all out cyber were there is a substantial risk large parts of the united states could find themselves reduced to the situation of new orleans without the warning of our evacuation our national guard it is a nightmare scenario the prospect to fight a war that we are struck at home raises the prospect we could lose and a real sense but that we lose.
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added steeply chilling with the response of the government to say we have to have the best possible one earring on the topic [laughter] i see what is going on. civilians suffering is so staggering next two nuclear war that we have to limit it so civilians don't suffer. we should get the people who might fight with us to agree. and we have to decide worry about our obligations and i think the problem is there's the assumption there will be
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losses for the conflict. but the last time we had a genuine technological development that brought the prospect war was the development of air power in the thirties. from kittyhawk or four years later they destroy it -- described the obama campaign everyone was focused on the prospects after resaw what it could be nobody wanted the cities of europe to be destroyed it is just as what we were thinking could happen with
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cyber war. so we call them the lawyers and everyone agreed on a civilian targets was a war crime but fdr was not going to war but he used the moral authority for the combat since to agree right there not to bomb from the air by the end of the day he had the agreement from everybody they all agreed they would not bomb from the air with civilian targets there was announcements and penalties
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intel about one year into the war churchill said i will show you how that works when the docks were hit now we will balm berlin. hither says one bomb on berlin is 100 dog london and announces the blitz and destroy as london from the air. the british and the americans by the end of the war no one had the nerve to bring charges of nuremberg for the civilian bombing from the air. that tells us even with the
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agreement how those laws would play out. we could not contain a cyber war any more than bombing from the air. so we are a nation of fools it will not protect us in a significant way. to create a significant problem here also engaged in the effort to say what should the rules before us? but by and large the general said so we can come up with strategies. the problem is we try to
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negotiate with cyber war but as soon as we say it is anything other than the highest possible standard we give away the negotiating position. we are pushed with the international negotiation into adopting limited rules about what is or is not proper. but the most serious problem is displacement putting to roosters in a small pen say size each other up and one sees the pebble that needs pact and opec it that is displacement because he
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would rather not fight. that theory is displacement behavior we would give you an opinion that is 100 pages long and will take forever we're displacing the energy for cyber war to legal abstract debates generals are on the sidelines tell me what i can do? this is the wrong way to treat lawyers. their effective use say we thought would take to win the cyber war. the only way to win is due this is a viggo? then you'll get useful legal advice they will find a way to say yes because most not
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want to cause us to lose but if you wait you'll never know where you can do this is where we are today. >> what is the baker p.o. of the rooster matches? [laughter] >> thank you for putting this together and this book so many issues that we have a very complex we have to access to us by the fact we have a better shot to access the broader audience and they do have the stars there and want to congratulate the
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chief cat to herder to get people to write these articles on a timely basis is a testament to his advocacy skills. >> it is a great stocking stuffer of left stewart's book even separates the argument i say that because the raise the flag when it needed to be raised and got people's attention when they're really not concerns when stores said in the beginning wears a cross government has so many of the go questions that they left the military unable to fight war plan for war in
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cyberspace. i don't believe that is the case would get the commander of space command and cyber command as a sub component where he said he did not believe we needed new explicit authorities and he also said " he did not think there is any issue to conduct cyber operations but look at two important speeches one by secretary panetta and did both of those they made it clear the military is planning for cyber war in the government is taking steps there is a remarkable statement in that
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report. >> she talks about stanley baldwin and let me say one thing 22,000 airmen died in the european theater of operation trying to execute a strategy of precision bombing it may be that day failed but more died in a one unit that all marines killed in rolled 42 so that effort was great now we are 67 years later. i would dispute to the military is not planning to
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wage cyber war i think there is evidence that is not being repeated by lawyers. and i gather he says to my defense is the offense a means you have to kill women and children more quickly than the end of may to save yourself. stewart says we need to face the cyber threat to with the candor of the stanley baldwin then after that get the lawyers involved. of think we can make that threat to. number one we don't need to but that asian states may present a threat to i don't know is single nation's state not deterred by our capacity if we believe
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secretary panetta we're the cutting edge and we have to keep it that way. there is also adversaries who will not be deterred we could launch a cyberattack. some of these people are like the taliban that she is a 14 year-old in the head because she is a schoolgirl. they're not deterred by threatening civilians but they do if you threaten their personal safety i would also say that to if we had this policy we would undermine the key thing that we need which is the
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cooperation of other nations states. no nation will cooperate with the country that says they will cast a the lot aside to attack women and children we need their cooperation to build our defense and i also believe it would be supported by our people in a democracy things matter. the professor at yale said even the limited aren't conflict requires support that can reverse itself rapid the matter how worthy the political objective if people believe it is in the
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and he made way. i don't know why anybody would think the u.s. military or our civilians would execute an order that is a legal. i don't think he would get that execution. summit is not militarily required. number two counterproductive we need the rest of the world to see us as rule of law it is not executable and what are we have gained a defense for? are we trying to protect a society the only thing important is their own
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safety? one observation is people who think only of their own safety have no chance to be freed. it is about us and not them know what kind of the society we want to preserve. not militarily required. >> i will agree of to appoint more planning has happened since the complained the leu years word getting in the way now they are of detail planning but if you read it carefully
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you get the strong impression and it is questionable to have the cyber counterattack from any country other than ours. news flash if that is the way refi eight the war than anybody will no how to prevent the attack from reaching them the only way is by slip a web thence across the borders through a variety of channels to whom the will not give notice if you take the physical analogy is questionable recent interfere with four or strategy's that could win or allow was to fight at a
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more detailed level. i also have to say i did not argue what we needed was a strategy why don't we just kill everybody? [laughter] . .
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